June 11, 2015

Let’s talk about it: Race to the courthouse

By Lisa Chalidze, chair of the Criminal Justice Division and Assistant Professor of Criminal Justice at College of St. Joseph, Rutland, Vt.

Last week a grand jury indicted six police officers in relation to the death of Freddie Gray. The charges ranged from second-degree assault to “depraved-heart murder.”

Gray lived in Baltimore. He was 25 years old and weighed 145 pounds, with a criminal record of non-violent offenses. He carried a knife in his pocket.

Lt. Brian W. Rice is 41 years old, a 17-year-veteran of the Baltimore police force. Lt. Rice knew Gray by sight.

On April 12 at 8:39 a.m. Lt. Rice and two other police officers were patrolling Gray’s neighborhood on bicycles. Lt. Rice spotted Gray walking down the street, and called him by name. The two made eye contact. Gray turned and ran.

Freeze-frame: at that moment in time, was any reaction on the part of the three police officers justified?

Let’s take a gander at the good old Constitution.

The Fourth Amendment states: “The right of the people to be secure in their persons … against unreasonable … seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing … the persons or things to be seized.”

The police had no warrant to “seize the person” of Gray. Seize him they did, however. About an hour later, Gray was delivered by police van to the hospital with a severe spinal-cord injury, leading to a coma. A week later, he was dead.

But surely police can seize people without a warrant? What about the daily clatter and grind of police work, the reality of the mean streets? How can police officers do their very hard job of keeping us safe if they must come to a screeching halt, then race to the courthouse for a warrant?

In fact, there are circumstances in which police may legally seize persons without a warrant; but the action must be “reasonable” under the circumstances. But how does a cop on the beat figure that out? Isn’t flight a sign of guilt? Perhaps. The courts will consider flight, among other facts, to determine “reasonableness” of the police officer’s action.

Yet we live in a democracy, not a police state. Is each of us obligated to halt and obey simply because the police call our name and tell us to stop? Where is the presumption of innocence, and freedom of movement? What became of the Fourth Amendment?

As a rule of thumb, police are not justified in seizing a person without a warrant unless the “circumstances” amount to an emergency, even if the “suspect” is fleeing. Did we hear gunshots? Are flames shooting from windows? Is an unseen person screaming?

The force of law is strongest when law itself coincides with our collective understanding of right and wrong.

And what of the lawfulness of deadly force? That is the next question posed by the Gray case. Let’s assume, for the sake of argument, that there was probable cause to believe Gray was a felon in need of arrest. Does this give the police a free hand to use lethal force?

No. As the Supreme Court has said: “It is not better that all felony suspects die than that they escape.”

Back to Baltimore. Could Freddie Gray cut and run? Is “eye contact” sufficient trigger for the trigger? In 1985 the Supreme Court told us, in Tennesse v. Garner: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

Unless we believe that Gray commanded the evil eye, he posed no such threat at 8:39 a.m. on April 12, with or without a record, with or without a knife in his pocket, with or without fleeing. No flames, no gunshots, no screams – until his own, as he was being dragged into the police van.

The populations of the state of Vermont and the City of Baltimore are roughly the same: about 620,000 souls. Vermont occupies over 9,000 square miles; Baltimore, about 92 square miles. The police in Baltimore face very different challenges than here; but the Fourth Amendment doesn’t take up much room.

Lisa Chalidze is a lawyer and chairwoman of the Criminal Justice Division at College of St. Joseph in Rutland. She lives in Benson, Vt. Chalidze has served as a trial lawyer concentrating on abuse of power in the context of commercial litigation and guardianship of persons with disabilities. She has also served as a trial lawyer in an insurance defense firm that included toxic torts and professional malpractice in the medical, legal and accounting fields. She received her education from New York Law School, Skidmore College and the University of Oregon.

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